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Petitioners’ case is not about realization, notwithstanding their claim that it “squarely and cleanly” raises that issue. The income taxed by the mandatory repatriation tax (MRT) was, in fact, realized by an Indian limited liability company (KisanKraft) while petitioners owned a stake in it. So the question here is not whether there was realized income, but who can be taxed on it. The Court has long recognized the constitutional power of Congress to tax the owners of an entity on income realized by that entity. Just as Congress has the power to tax a partner on the income earned by a partnership, Congress has the authority to tax U.S. shareholders on their share of income realized by a foreign corporation.

Upholding the MRT as a tax imposed on realized income of the foreign corporation will fully dispose of the case, without taking on complicated questions like whether realization is always constitutionally required and what comprises realization. By contrast, finding that the MRT violates a constitutional shareholder-level realization requirement could be profoundly destabilizing: there will be a flood of litigation about the constitutionality of a host of other provisions.


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